THE ALBANY LAW JOURNAL: A WEEKLY RECORD OF THE LAW AND THE LAWYERS. The Albany Law Journal. ALBANY, JULY 6, 1895. Current Topics. had business at the licensing meeting. In an action of libel brought by the plaintiff against the head constable in respect of his publication of the above-mentioned objections, it was held that the occasion of the publication was privileged. Lord Esher, in delivering the opinion. [All communications intended for the Editor should be ad- of the Court of Appeal, says: "The resolution dressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other was passed, not merely that this book should be business matters, should be addressed to THE ALBANY LAW compiled, but that it should be compiled be JOURNAL COMPANY.] As cause it would be a useful assistance to the members of the court in the exercise of their judicial functions. But then the magistrates passed another resolution to the effect that it would be of assistance to them, in exercising their judicial functions, that everybody who should come before them, for the purpose of assisting in that judicial operation, should have a copy of this book. They therefore directed the head constable to sell this book to all persons who might apply for and require it in order to facilitate their business at the general annual licensing meeting. When, therefore, the head constable issued the book to persons, whether counsel or solicitors, or parties who came before the magistrates for the purpose of assisting them in the exercise of their judicial functions, he was, in my opinion, only doing that which the magistrates had the right of commanding him to do, and which he was bound to do. The order given to the consta S has been remarked before in these columns, the number of actions for libel, both in this country and in England, seems to be increasing; while it is also a matter of note that the number of verdicts recovered in these proceedings are proportionately decreasing yearly. The proposition, therefore, seems to be that the feelings of men are becoming more and more sensitive to statements made in the newspapers, while the average juryman, and more particularly the judge, does not place much value on the so-called "slights" which are alleged. An action which has been somewhat noised about in the English papers is that of Andrews et al. v. Nott-Bower. The facts of the case seem to be that the head constable of a city, acting under the directions of its watch committee and magistrates, drew up a report containing a list of all the public houses in the city in respect to which a renewal of license was to be asked for at the approaching general annual licensing meet-ble was an order of the court, as to the mode in ing. Besides the names of the public houses, the report contained columns with dates and other details of information which would be useful to the magistrates at the licensing meeting. It contained, among other things, opposite the name of the public house, of which the plaintiff was licensee, the objections to the renewal of its license, notice of which had been served by the police. Acting in accordance with the directions given him, the head constable sold copies of this report to persons who VOL. 52 No. 1. which its business should be carried on, and was an order given to one of its own officers. What that officer did was, therefore, a thing done on a privileged occasion. There is no evidence that he delivered this book to anybody but those to whom he was directed to deliver it, and, therefore, I think the occasion is privileged, and under these circumstances this appeal must be dismissed." Lopes, L. J., in his opinion, says: "There is no evidence, as far as I can see, that the report difficult to find stronger and more impressive words than those written in this, now celebrated cause, by Justice Brewer, of the United States Supreme Court, and which are : "A most earnest and eloquent appeal was made to us in eulogy of the heroic spirit of those who threw up their employment, and gave up their means of earning a livelihood, not in defense of their own rights, but in sympathy for and to assist others whom they believed to be wronged. We yield to none in our admiration of any act of heroism or self-sacrifice, but we may be per was delivered to anybody who had not business at the Brewster Sessions; but it is said that the delivery of the report to persons other than the justices, although they had business at the Brewster Sessions, was in excess of privilege. I have said it is a somewhat new point, and one naturally feels some hesitation about it. But I have come to the conclusion that the occasion was privileged. The report most clearly was made and published by direction of a competent authority, namely, the justices. It cannot be said but that it was a report that, at any rate, was convenient and desirable for a proper and effec-mitted to add that it is a lesson which cannot tive discharge of the business of the Brewster Sessions. And, as far as I can see, the defendant did not do anything more than that which he was ordered to do by the court. Now, that being so, I arrive at the conclusion that the occasion was a privileged one, and that nothing has been done which can be said to be a violation or an abuse of the privilege. There are certain words in the case of Stuart v. Bell, 64 L. T. Rep. 633; (1891) 2 Q. B. 341, which, I think, are very applicable to this case. They are these: The reason for holding any occasion privileged is common convenience and the welfare of society, and it is obvious that no definite line can be so drawn as to mark with precision those occasions which are privileged, and separate them from those which are not.' I think those words are applicable to the present case, because it seems to me that this report was convenient, and indeed almost necessary, for the purpose of carrying out the business of these sessions, and it was ordered, as I have already said, by a competent authority. Then there was the point with regard to actual malice. That point has not been put into practical exercise by the legislation of relied upon. Clearly there was no evidence of congress; that in the exercise of those powers it is competent for the nation to remove all actual malice that ought to have been left to a jury. The occasion, therefore, was privileged, ficial, to the passage of interstate commerce or obstructions upon highways, natural or arti and the appeal must be dismissed." The Debs case has attracted from its inception the liveliest interest, not only because it embraces what is perhaps one of the most vital questions of the day, the relations between capital and labor, but because it was also necessary to have finally adjudicated what is the full power of the courts to regulate questions involving not only interstate commerce, but the peace and order of the country. It would be be learned too soon or too thoroughly that under this government of and by the people the means of redress of all wrongs are through the courts and at the ballot box, and that no wrong, real or fancied, carries with it legal warrant to invite as a means of redress the co-operation of a mob, with its accompanying acts of violence." Continuing, Judge Brewer, in closing the opinion, says: "We have given this case the most careful and anxious attention, for we realize that it touches closely questions of supreme importance to the people of this country. Summing up our conclusions, we hold that the government of the United States is one having jurisdiction over every foot of soil within its territory, and acting directly upon each citizen; that, while it is a government of enumerated powers, it has within the limits of those powers all the attributes of sovereignty; that to it is committed power over interstate commerce and the transmission of the mail; that the powers thus conferred upon the national government are not dormant, but have been assumed and the carrying of the mail; that, while it may be competent for the government (through the executive branch and in the use of the entire executive power of the nation) to forcibly remove all such obstructions, it is equally within its competency to appeal to the civil courts for an inquiry and determination as to the existence and character of any alleged obstructions, and if such are found to exist, or threaten to occur, to invoke the powers of those courts to remove or restrain such obstructions; that the juris diction of courts to interfere in such matters by injunction is one recognized from ancient times and by indubitable authority; that such jurisdiction is not ousted by the fact that the obstructions are accompanied by or consist of acts in themselves violations of the criminal law; that the proceeding by injunction is of a civil character, and may be enforced by proceedings in contempt; that such proceedings are not in execution of the criminal laws of the land; that the penalty for a violation of injunc tion is no substitute for and no defense to a prosecution for any criminal offenses committed in the course of such violation; that the complaint filed in this case clearly showed an existing obstruction of artificial highways for the passage of interstate commerce and the transmission of the mail,—an obstruction not only temporarily existing, but threatening to continue; that under such complaint the Circuit Court had power to issue its process of injunction; that, it having been issued and served on these defendants, the Circuit Court had authority to inquire whether its orders had been obeyed, and, when it found that they had been, then to proceed under section 725, Rev. St., which grants power "to punish, by fine or imprisonment, disobedience, * * * * * * * by any party or other person, to any lawful writ, process, order, rule, decree, or command, and enter the order of punishment complained of; and, finally, that the Circuit Court having full jurisdiction in the premises, its finding of the fact of disobedience is not open to review on habeas corpus in this or any Ex parte Watkins, 3 Pet. 193; Ex parte Yarbrough, 110 U. S. 651, 4 Sup. Ct. 152; Ex parte Terry, 128 U. S. 280-305, 9 Sup. Ct. 77; In re Swan, 150 U. S. 637, 14 Sup. Ct. 225; U. S. v. Pridgeon, 153 U. S. 48, 14 Sup. Ct. 746." other court. Perhaps, as has already been suggested, the most important question from a legal standpoint of view is the power of the United States courts to preserve the peace and safety of the citizens of every State alike. The opinion is one which deserves the most careful study, and we regret that we cannot in these columns print more of it; but concerning the point which we have just mentioned we print the following from Judge Brewer's opinion: "We do not care to place our decision upon this ground alone. Every government, intrusted by the very terms of its being with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other, and it is no sufficient answer to its appeal to one of those courts that it has no pecuniary interest in the matter. The obligations which it is under to promote the interest of all and to prevent the wrongdoing of one, resulting in injury to the general welfare, is often of itself sufficient to give it a standing in court. This proposition in some of its relations has heretofore received the sanction of this court. In U. S. v. San Jacinto Tin Co., 125 U. S. 273, 8 Sup. Ct. 850, was presented an application of the United States to cancel and annul a patent for land on the ground that it was obtained by fraud or mistake. The right of the United States to maintain such a suit was affirmed, though it was held that if the controversy was really one only between individuals in respect to their claims to property the government ought not to be permitted to interfere, the court saying: 'If it be a question of property, a case must be made in which the court can afford a remedy in regard to that property; if it be a question of fraud which would render the instrument void, the fraud must operate to the prejudice of the United States; and if it is apparent that the suit is brought for the benefit of some third party, and that the United States has no pecuniary interest in the remedy sought, and is under no obligation to the party who will be benefited to sustain an action for his use; in short, if there does not appear any obligation on the part of the United States to the public or to any individual, or any interest of its own, -it can no more sustain such an action than any private person could under similar circumstances.' "This language was relied upon in the subsequent case of U. S. v. American Bell Tel. Co., 128 U. S. 315, 9 Sup. Ct. 90, which was a suit brought by the United States to set aside a patent for an invention on the ground that it had been obtained by fraud or mistake, and it was claimed that the United States, having no pecuniary interest in the subject-matter of the suit, could not be heard to question the validity difficult to find stronger and more impressive was delivered to anybody who had not business at the Brewster Sessions; but it is said that the delivery of the report to persons other than the justices, although they had business at the Brewster Sessions, was in excess of privilege. I have said it is a somewhat new point, and one naturally feels some hesitation about it. But I have come to the conclusion that the occasion was privileged. The report most clearly was made and published by direction of a competent authority, namely, the justices. It cannot be said but that it was a report that, at any rate, was convenient and desirable for a proper and effec-mitted to add that it is a lesson which cannot tive discharge of the business of the Brewster Sessions. And, as far as I can see, the defendant did not do anything more than that which he was ordered to do by the court. Now, that being so, I arrive at the conclusion that the occasion was a privileged one, and that nothing has been done which can be said to be a violation or an abuse of the privilege. There are certain words in the case of Stuart v. Bell, 64 L. T. Rep. 633; (1891) | 2 Q. B. 341, which, I think, are very applicable to this case. They are these: The reason for holding any occasion privileged is common convenience and the welfare of society, and it is obvious that no definite line can be so drawn as to mark with precision those occasions which are privileged, and separate them from those which are not.' I think those words are applicable to the present case, because it seems to me that this report was convenient, and indeed almost necessary, for the purpose of carrying out the business of these sessions, and it was ordered, as I have already said, by a competent authority. Then there was the point with regard to actual malice. That point has not been relied upon. Clearly there was no evidence of actual malice that ought to have been left to a be learned too soon or too thoroughly that under this government of and by the people the means of redress of all wrongs are through the courts and at the ballot box, and that no wrong, real or fancied, carries with it legal warrant to invite as a means of redress the co-operation of a mob, with its accompanying acts of violence." Continuing, Judge Brewer, in closing the opinion, says: "We have given this case the most careful and anxious attention, for we realize that it touches closely questions of supreme importance to the people of this country. Summing up our conclusions, we hold that the government of the United States is one having jurisdiction over every foot of soil within its territory, and acting directly upon each citizen; that, while it is a government of enumerated powers, it has within the limits of those powers all the attributes of sovereignty; that to it is committed power over interstate commerce and the transmission of the mail; that the powers thus conferred upon the national government are not dormant, but have been assumed and put into practical exercise by the legislation of Congress; that in the exercise of those powers it is competent for the nation to remove all obstructions upon highways, natural or arti jury. The occasion, therefore, was privileged, ficial, to the passage of interstate commerce or and the appeal must be dismissed." The Debs case has attracted from its inception the liveliest interest, not only because it embraces what is perhaps one of the most vital questions of the day, the relations between capital and labor, but because it was also necessary to have finally adjudicated what is the full power of the courts to regulate questions involving not only interstate commerce, but the peace and order of the country. It would be the carrying of the mail; that, while it may be competent for the government (through the executive branch and in the use of the entire executive power of the nation) to forcibly remove all such obstructions, it is equally within its competency to appeal to the civil courts for an inquiry and determination as to the existence and character of any alleged obstructions, and if such are found to exist, or threaten to occur, to invoke the powers of those courts to remove or restrain such obstructions; that the juris |